The saga of the parliamentary crisis, still far from over, has shown that the rule of law and its supremacy, as universal principles, are still alien to Afghanistan's political elite and its body politic. The ongoing crisis has its origins primarily in violation of the laws that are in force in pursuit of narrow personal and group interests and further, the absence of a powerful Judiciary and its system of "checks and balances" that can act as the ultimate guardian of the rule of law and its supremacy.
As individuals and groups maneuvered to circumvent the laws in force or to exercise them selectively in furtherance of their own agendas, a political theater of the absurd was created - a mix of farce and tragedy that laid bare the dysfunctional system in place and the little progress that our political system has made over a period of ten years.
Ten years is not at all a short period of time; it is more or less equivalent to the time taken for restoration of political, economic and social order in other post-conflict countries that arose out of chaos and disarray.
Over the past ten years, when it comes to state-building, promotion and consolidation of rule of law and instilling accountability in the political system, we have made as much little progress as we have done in the battle against the Taliban and their allies.
The electoral law of Afghanistan, still not passed by the Parliament but brought into force by a Presidential decree, explicitly designates the Independent Election Commission (IEC) as the sole authority to determine the election results in Afghanistan.
The President's decision to take the matter into his own hands in the form of setting up a Special Tribunal and the Judiciary's decision to wade the muddied waters to prove loyalty all amounted to violations of laws in force and nullifying the mandate of the Independent Election Commission.
From the beginning, it was clear that this decision so obviously goes against the provisions of the law; you didn't need a lawyer to tell you that the President's decision violated the concerned laws in both letter and spirit.
The fact that President Karzai had to finally compromise and refer the matter back to the Independent Election Commission, which ruled to unseat 9 sitting MP's, is a testimony to the illegal nature of the decision to set up the Special Tribunal in the first place.
For now, the Executive branch's intentions to torpedo the independence of the Independent Election Commission and the Parliament and to co-opt them into its own political orbit have stalled in tracks. Ambitions remain high on the part of the government but it must accustom itself to a democratic process that is governed by Separation of Powers and the rule and supremacy of the laws in force.
Ideally, we must see a President that mobilizes all in his power to lend greater vitality, credibility and stability to the current political system and not one that schemes to destabilize the nascent foundations of the political system.
The irregularities and the shortcomings of the Executive aside, the conduct of the Independent Election Commission has also been questionable. While the Commission laudably stuck to its gun throughout the turbulent days and proclaimed the impregnability of its mandate, ruling to unseat 9 sitting MP's amounted to lending legitimacy and credence to the decisions of the illegal and widely discredited Special Tribunal.
While it is unanimously agreed, whether in open or private, that the Special Tribunal had no lawful basis on which to intervene, the IEC's decision to amend its earlier election results based on the rulings of such a Tribunal, is highly questionalble. Certainly, the integrity and impartiality of the Independent Election Commission too has taken a severe beating, much like the Executive and the Judiciary. The Commission's ruling to amend the election results it had earlier certified, is highly questionable.
Where is the Judiciary's Independence?
Is it not that Separation of Powers is one of the foremost principles of governance in any political system that strives to be democratic? And is it not that Judicial Review and Judicial Activism are the the two foremost principles that every Judiciary is required to meticulously carry out and live by? The farcical tragedy of the current crisis has also put in sharp focus the issue of the Judiciary's independence in Afghanistan.
While it is infinitely critical for the health of any political system that the Judiciary stay clean of political wheeling and dealings, and while it is Constitutionally mandated that the Judiciary not become politicized, the events and trends in today's Afghanistan have left us with a Judiciary that plays second fiddle to the Executive branch and has made little progress on the path to consolidating itself as a reliable and strong pillar of the Republic.
In other countries, even those which qualify to be only quasi-democracies, the governments, the Presidents and Prime Ministers are all fearful of the Judiciary or the Supreme Court's inquiries into their conduct. Here in Afghanistan, our Judiciary continues to be happily a pawn in the pocket of the powers-to-be.
The pattern emerges that the current and ongoing crisis, far from being solely the fault of the President or the government, is also the fault of the our electoral system and our Judiciary as well. Parliament and the Wolesi Jirga too does not have a clean track record during this crisis. While the government has so clearly contributed its own share to the current mess, it would be wrong to hold the government as the sole responsible party for this mess; others too, as discussed, are to blame and rightly so.
Therefore, the current crisis is a systemic crisis; it is a system-wide failure of some of the most crucial organs of the state to function and to render their responsibilities.
On one hand, we have institutional shortcomings and deficiencies in the structure of the state. Matters such as a grossly inefficient Judiciary or a Parliament that acts more out of short-sighted opportunism than collective political expediency, are examples of our institutional shortcomings.
The fact that the Commission for the Supervision of the Constitution's Implementation does not have or is denied the required degree of independence is an acute institutional failure. These failures and shortcomings that deal with the structure of the government and the state need to be urgently addressed in an environment of cooperation and solidarity.
Apart from these rampant institutional shortcomings, respect to and recognition of the rule of law and its supremacy are not inculcated in the political culture of our body politic. Still, much like in our bloodied past, the unspoken rule is that the winner takes all. The exclucivist and authritarian political culture, one based on a winner-takes-all notion, still exists in our country and it is a bitter legacy of the era of monarchy and before and has been further exacerbated by decades of war and conflict in the country.
This systemic crisis should be a cause for worry. It should be a wake-up call. It should ring the alarm bells inside the government in Kabul and in the capitals of countries which have been helping Afghanistan over the past one decade. For all to see that the whole system is blinking red and something must be done.